Shyam Lal Sahu, Vs. the State of Jharkhand and Ajay Prasad, Officer-in-charge - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 5. advancing his argument, learned counsel pointed out that rule 57 of the jharkhand minor mineral concession rules, 2004 clearly speaks:d.k. sinha, j.1. in the instant writ petition, the petitioners have requested for setting aside/quashment of the entire criminal proceeding including the cognizance order impugned dated 23.10.2007 taken against them in palkot p.s. case no. 14 of 2007 corresponding to g.r. case no. 167 of 2007 for the alleged offence under sections 379/411/34 i.p.c. as also under section 54 of the jharkhand mines and minerals act and sections 41/42 of the indian forest act pending before the s.d.j.m., gumla.2. the prosecution story as it stands narrated in the self statement of sub-inspector of police ajay prasad (officer-in-charge of palkot police station) was that on 16.02.2007 while he was on day patrolling duty with the police party, he received secret information and pursuant to that he arrived on the bisahi rock situated towards east of the n.h. 23. when he climbed over the hillock, the labourers engaged in breaking the stones and loading the stone chips on the vehicle started fleeing at the sight of the police party. however, two of them could be apprehended on chase. one of them disclosed his name being shyam lal sahu, who claimed to be the driver of the dumper. he confessed that on the instruction of his employer jagarnath sahu, he was carrying the stones chips to be used in the road construction at the site at biling bera. the another accused, who was apprehended, also claimed to be the driver of another tractor and confessed what the accused surendra gope had stated before the police that he also on the instruction of his employer, jagarnath sahu cum contractor was carrying stone chips on the tractor to be used at the same site. on demand no document was produced in relation to authority for quarrying stones from the hillock. both the vehicles were seized and the case was instituted under various sections of different acts as stated above against the petitioners including the employer jagarnath sahu for doing illegal mining in protected forest and illegally carrying minor minerals (stone chips).3. the learned counsel for the petitioners submitted that admittedly the f.i.r. was not instituted by a competent officer of the mining department authorized to lodge the complaint under section 54 of the jharkhand mines and minerals act. in the instant case the raid was conducted by a police officer of the rank of sub-inspector who had also made search and seizure and mechanically lodged the case without any authority under rules so to do.4. mr. nilesh kumar, the counsel submitted that one balmukund mahto was the government lessee of minor mineral viz. stone metals with his crusher situated at 61-pilat and the contractor, who was constructing the road i.e. the petitioner jagarnath sahu had purchased stone chips from the govt. lessee and while that the driver petitioners were carrying stone metals on the tractors of the petitioner jagarnath sahu, it were intercepted by the sub-inspector of police with ulterior motive without authority. the petitioner jagarnath sahu was one of the partners in m/s krishna construction had obtained tender, accordingly agreement was arrived at on 08.12.2006 (annexure-2) between the executive engineer, r.e.o., works division gumla and m/s krishna construction for construction of palkot-bilingbera road and the work was required to be completed by 25.03.2007. pursuant to the terms of the agreement aforesaid the work of construction of road was going on by m/s krishna construction by diverting and exploiting all the legal resources and man power so as to complete the work within time frame otherwise the construction company could be saddled to pay the damages.5. advancing his argument, learned counsel pointed out that rule 57 of the jharkhand minor mineral concession rules, 2004 clearly speaks:no court inferior to that of magistrate of the 1st class shall try any offence punishable under this rules and no court shall take cognizance of any offence under this rules except upon a complaint made in writing by the competent officers or deputy director of mines or additional director of mines or director of mines or any other officer empowered by the government.6. in the instant case, the informant is neither the officer competent under section 57 of the jharkhand minor mineral concession rules, 2004 nor an officer empowered by the government in this regard for lodging a complaint before a magistrate for the offence under section 54 of the jharkhand mines and minerals act which is a self contained penal section.7. advancing his argument learned counsel mr. kumar submitted that when penal provisions have been provided in special (sic) as contained in section 54 of the jharkhand mines and minerals act then, the prosecution of the petitioners in general law much less for the offence under sections 379/411/34 i.p.c. and under sections 33/41/42/52(3) of the indian forest act is not maintainable as held in various decisions of the hon'ble courts. similarly, the police officer of the rank of sub-inspector was not authorized to make search or seizure of the trailers with tractors carrying stone chips (minor mineral) against the valid purchase receipts to be used in the government contract work i.e. construction of roads as per agreement between the executive engineer and m/s krishna construction. the cognizance of the offence taken by the impugned order dated 23.10.2007 on the f.i.r. lodged by an officer not competent to do amounts to miscarriage of justice and therefore, the entire criminal proceeding initiated against the petitioners including the cognizance order is liable to be set aside.8. finally, learned counsel relied upon the observation of this court in sushil kumar singh v. state of jharkhand made in w.p. (cr.) no. 75 of 2006 pronounced on 23.03.2007 wherein this court held.having noticed all the provisions, as mentioned above, it can conclusively be said that offence relating to illegal extraction or removal of the mines and minerals is covered under the provisions of bihar mines and minerals concession rules and the procedure for investigation, enquiry or trial has also been laid down in the said rules and, therefore, the provisions of bihar mines and minerals concession rules, 1972 shall prevail upon the procedure laid down under the general law. thus, the first information report lodged by sub-inspector of police, who has not been shown to have been empowered by the government to lodge a case relating to illegal extraction or removal of the minor minerals can certainly be said to have been lodged in contravention of the provisions of the special law and hence, it is fit to be quashed.9. heard mr. r.r. mishra, g.p.-ii on behalf of the respondents-state, who admitted that no counter-affidavit has been filed.10. having regard to the facts and circumstances of the case, argument advanced on behalf of the petitioners on the point, of law, i find that section 4 of the code of criminal procedure deals with trial of offences under the indian penal code and other laws which speaks:(1) all offences under the indian penal code (46 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.(2) all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.11. it is settled law and the learned g.p.-ii did not dispute that special law shall prevail over the general law. the alleged offence was in relation to carrying minor minerals (stone chips) on tractors from the site of quarrying and the alleged offence if at all is made out, it is under section 54 of the jharkhand mines and mineral act. i further find that the informant of this case being the police officer of the rank of sub-inspector was not authorized to lodge an f.i.r. against the petitioners and to make search and seizure contrary to the provisions of rule 57 of jharkhand mines mineral concession rules, 2004 and therefore, the prosecution launched by a person not competent to do so is of no relevance.12. under the circumstances i find and observe that the prosecution of the petitioners on the written report of the sub-inspector of police is not maintainable and hence it is liable to be quashed in relation to palkot p.s. case no. 14 of 2007 corresponding to g.r. no. 167 of 2007 including the cognizance order dated 23.10.2007 passed by the c.j.m., gumla. the same are accordingly quashed herewith.13. this writ petition is allowed.